D.C.E. v. StateD.C.E. v. State
- Reporters:
- ,
- Before:
- Robert P. Smith Jr.
D.C.E., a minor, appeals from a circuit court order of adjudication that he is a delinquent because he committed disorderly conduct, contrary to a Pensacola municipal ordinance, and possessed alcoholic beverages contrary to
D.C.E., 17 years of age, leaned from the rear window of a car at a busy intersection and shouted “f____ pigs” three times at police officers stopped in traffic at the same intersection. An officer observed appellant drinking what later proved to be a rum drink. Several persons at the intersection turned to see what the commotion was, but when the light changed, traffic moved on without incident. The proprietors and customers of nearby businesses did not seem aware of appellant‘s behavior. Within half a block the police stopped the vehicle in which appellant was riding, observed a bottle of rum in plain view on the front floor-board, then found glasses containing rum drinks and smelled the odor of alcohol on appellant‘s breath.
The circuit court had jurisdiction of the delinquency petition.
The court also had jurisdiction to decide whether unlawful possession of alcoholic beverages by a minor “would be a misdemeanor or a felony if committed by an adult,” and the court correctly decided that the offense was a misdemeanor qualifying as the basis for a delinquency judgment.
Appellant urges that his adjudication of delinquency for disorderly conduct under the city ordinance1 was improper
Appellant finally asserts the officers were unjustified, by Fourth Amendment standards, in stopping the car, which led to their observation of the rum bottle and their detection of an alcohol odor on appellant‘s breath. We disagree. Officers may stop and briefly detain an automobile and its occupants when the circumstances create “at least an articulable and reasonable suspicion” that an occupant has violated the law. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Appellant‘s unprovoked and obscene verbal attack on the police was constitutionally protected or not depending on all the circumstances. E.g., Cross v. State, supra, in which intoxication was an element, among others, removing the constitutional protection from speech which might otherwise have been privileged. Given the circumstances here, the officers had at least a reasonable suspicion that appellant had violated the municipal ordinance, and that a further inquiry, by stopping the car, was appropriate. Having the right to stop the car, the officers were privileged to observe the rum bottle, then to confirm appellant‘s possession and consumption of the alcohol.
Because the single adjudication of delinquency was based on conclusions of law which were erroneous in part, the order of adjudication is REVERSED and cause REMANDED for further proceedings.
MILLS, Chief Judge, concurs in part and dissents in part, and would affirm.
ERVIN, J., concurs in the judgment of reversal and dissents in part.
MILLS, Chief Judge, concurring in part and dissenting in part:
I concur in part and dissent in part. I would affirm the trial court‘s order in all respects.
I agree with Judge Smith‘s opinion that the trial court had jurisdiction of the delinquency petition and that the officers were justified in stopping the car in which D.C.E. was a passenger because they were justified under the circumstances in having a reasonable suspicion that the municipal ordinance was being violated.
I disagree with Judges Smith and Ervin that the defendant‘s unprovoked and obscene language was constitutionally protected. There is no doubt in my mind that defendant‘s words were fighting words which by their utterance inflicted injury and tended to incite an immediate breach of the peace. White v. State, supra.
ERVIN, Judge, dissenting and concurring.
I agree in all respects with the majority‘s opinion except that portion upholding the delinquency adjudication as to the possession of alcoholic beverages. In my judgment the facts do not demonstrate that the
A stop of an automobile on grounds less than probable cause is a seizure, and the Fourth Amendment applies to determine whether the intrusion is reasonable. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Thus, when grounds other than probable cause are relied upon to justify the reasonableness of the particular law enforcement action, the act is judged by balancing the reasonableness of the intrusion on the individual‘s Fourth Amendment privacy interests against the promotion of legitimate governmental interests. Id. Before the officer is authorized to stop, his observations should lead him reasonably to suspect that the occupants of the particular vehicle are violating the laws or that the vehicle is being operated in violation of the laws. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Delaware v. Prouse, supra. And, he must be “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” of such illegality. United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. at 2582. Finally, when a court evaluates the reasonableness of the conduct on grounds less than probable cause, the circumstances must be judged by an objective standard: “[W]ould the facts available to the officer at the moment of the seizure ... `warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).
Applying the above test to the instant facts, would the utterance of the epithet by the delinquent have warranted a man of reasonable caution in the belief that it was necessary to stop the vehicle upon the ground that the words used were a violation of the disorderly conduct ordinance? I suggest that the present circumstances do not meet that test.
The majority‘s opinion rightfully, I think, states that the municipal ordinance is unconstitutional as applied to the manner in which the words were used by D.C.E., yet on the other hand holds that “the officers had at least a reasonable suspicion that appellant had violated the municipal ordinance, ... .” Ante at 1099. Were this a case of first impression I might be inclined to agree, but disorderly conduct ordinances and similar laws affecting speech have been narrowly limited by the courts of this state for the past several years. For example, in City of St. Petersburg v. Waller, 261 So.2d 151, 158-159 (Fla. 1972), the Florida Supreme Court, relying upon Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), stated that a defendant‘s conduct may violate a city ordinance proscribing verbal abuse of a police officer when limited only to words having a direct tendency to cause acts of violence. However, “[m]ere displeasure, annoyance or resentment is not sufficient.” Id. at 158. More recently the court upheld
The above decisions, as well as those cited in the majority opinion, relating to protected speech, were decided some period of time before the alleged delinquent acts occurred; as a result, I do not think it behooves us to excuse the officer‘s illegal conduct on “reasonable suspicion” grounds. One may reasonably conclude that the officer‘s sensitivities were offended by the indelicate language
I would reverse the adjudication of delinquency in its entirety.
Notes
Pensacola municipal ordinance Section 122 16.1, Disorderly Conduct, provides:
A Disorderly Conduct: A person, shall be guilty of disorderly conduct if, with a purpose to cause a breach of the peace, public danger, disorder or nuisance, or with the knowledge that he is likely to create such breach of the peace, public danger, disorder or nuisance, he:
.....
4. Addresses profane, obscene, or abusive language or threats of violence to any person present so as to create a clear and present danger of violence.